Madras High Court
The Manager Director And Ceo vs Noorunissa on 2 December, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
CRP.No.4445 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.12.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.R.P.No.4445 of 2024
and C.M.P.No.24764 of 2024
1.The Manager Director and CEO
ICICI Lombard General Insurance Company Ltd
414, P.Balu Marg, Off: Veer Sawarkar Marg
Near Siddhivinayak Temple, Prabhadevi
Mumbai – 400 025
2.The Manager
ICICI Lombard General Insurance Company Ltd
First Floor, No.142, ECR Main Road
Next: ICICI Bank, Kottupalayam
Pondicherry – 605 008 .. Petitioners
Versus
Noorunissa .. Respondent
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the impugned order dated 22.11.2023 in Consumer
Complaint No.42 of 2023 passed by the learned District Consumer
Disputes Redressal Commission, Villupuram.
For Petitioners : Mr.C.Suraj
For Respondent : Mr.Adhitya Chandra Mouli
https://www.mhc.tn.gov.in/judis
Page 1 of 11
CRP.No.4445 of 2024
ORDER
Challenging the order passed by the District Consumer Forum, the instant CRP has been filed invoking Article 227 of the Constitution of India.
2. Brief background of the case is as follows:
2.a. The respondent/complainant has filed a complaint directing the opposite party/revision petitioners to return the TDS amount of Rs.1,37,796/- with interest at 12% ffrom 20.01.2021 to till the date of payment, a compensation of Rs.10,000/- towards mental agany, Rs.2000 towards cost of the legal notice and Rs.5000 towars cost of litigation.
2.b. The complainant met with the road accident on 27.10.2012 and in that accident, her left hands is totally spoiled with grevious injury.
Therefore, she filed MCOP.No.520 of 2019 before the Special Sub Court No.II (MACT Cases) Villupuram and a compensation of Rs.14,08,300/- was awarded with interest by the Tribunal. Towards compliance, the petitioners herein issued cheque for Rs.20,20,695/- as against the gross cheque of Rs.21,58,671/- after deducting TDS amount of Rs.1,37,976/-. It https://www.mhc.tn.gov.in/judis Page 2 of 11 CRP.No.4445 of 2024 is the grievance of the respondent that having deducting the TDS amount on 19.01.2021, the same was not remitted to the Income Tax Department. Only after legal notice issued by the petitioner on 20.01.2022, the revision petitioner has remitted the TDS amount on 24.01.2022. Therefore, the complainant's claim for refund of the TDS amount has lost. Hence, the complaint. The revision petitioner took a stand admitting that there was deduction of TDS and remittance to the Income Tax Department with delay. It was the specific contention that Consumer Commission does not have any jurisdiction and the complaint is not maintainable.
2.c. Taking consideration of the above circumstances, the Tribunal has directed the revision petitioners to pay a sum of Rs.1,37,796 with 12% interest per annum from 19.01.2021 to till the date of realisation and Rs.10000 towards compensation for deficiency in service and mental agony causes to the respondents and further Rs.7000 towards litigation costs. Challenging the order, the present revision has been filed.
3. The learned counsel for the revision petitioners submitted that the District Consumer Disputes Redressal Commission ought not have https://www.mhc.tn.gov.in/judis Page 3 of 11 CRP.No.4445 of 2024 entertained the complaint and the Commission has no jurisdiction to decide the issue. According to the petitioners, the respondent has not availed any service for a consideration from the petitioners as stipulated under Section 2(7)(ii) of the Consumer Protection Act, 2019. Therefore, the Commission do not have jurisdiction to entertain the complaint and accordingly, the revision is very much maintainable.
4. The learned counsel for the respondent mainly would submit that as against the order of the District Consumer Commission, only appeal is maintainable before the State Commission as per Section 41 of the Consumer Protection Act, 2019. Only in order to avoid the mandatory procedure in filing the appeal, the present revision is filed. Hence, according the respondent, there is no jurisdictional issue and admittedly, there was a contract between the insurance company to pay the insurance amount. The respondent is the beneficiary of the insurance. Therefore, she certainly will come within the ambit of the consumer. Therefore, seeks for dismissal of this revision.
https://www.mhc.tn.gov.in/judis Page 4 of 11 CRP.No.4445 of 2024
5. Whereas, the learned counsel for the petitioner submitted that the petitioner is not a consumer and the District Commission ought not to have entertained the complaint. Hence, seeks to allow this revision.
6. Heard both sides and perused the materials placed on record.
7. It is relevant to extract the definition of "consumer" in Consumer Protection Act, 2019, which reads as follows:
" (7) "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation. —For the purposes of this clause, — https://www.mhc.tn.gov.in/judis Page 5 of 11 CRP.No.4445 of 2024
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;"
8. The above definition makes it clear that there must be some service for consideration. The fact remains that the Hon'ble Supreme Court in the case of Canara Bank vs. United India Insurance Company Limited and others reported in (2020) 3 SCC 455 has held as follows:-
“ 27. The definition of “consumer” under the Act is very wide and it not only includes the person who hires or avails of the services for consideration but also includes the beneficiary of such services who may be a person other than the person who hires or avails of services.
28. Taking the issue of privity of contract, we are of the considered view that as far as the Act is concerned, it is not necessary that there should be privity of contract between the Insurance Company and the claimants. The definition of “consumer” under Section 2(d) quoted hereinabove is in two parts. Sub-clause (i) of Section 2(1)(d) deals with a person who buys any goods and includes any user of such goods other than the person who buys such goods as long as the use is made with the approval of such person. Therefore, the definition of consumer even in the first part not only includes the person who has purchased but includes any user of the goods so long as such user is made with the approval of the person who has purchased the goods. As far as the definition https://www.mhc.tn.gov.in/judis Page 6 of 11 CRP.No.4445 of 2024 of “consumer” in relation to hiring or availing of services is concerned, the definition, in our view, is much wider. In this part of the section, consumer includes not only the person who has hired or availed of the services but also includes any beneficiary of such services. Therefore, an insured could be a person who hires or avails of the services of the Insurance Company but there could be many other persons who could be the beneficiaries of the services. It is not necessary that those beneficiaries should be parties to the contract of insurance. They are the consumers not because they are parties to the contract of insurance but because they are the beneficiaries of the policy taken out by the insured.
29. The definition of “consumer” under the Act is very wide and it includes beneficiaries who can take benefit of the insurance availed by the insured. As far as the present case is concerned, under the tripartite agreement entered between the Bank, the cold store and the farmers, the stock of the farmers was hypothecated as security with the Bank and the Bank had insisted that the said stock should be insured with a view to safeguard its interest. We may refer to the penultimate clause of the tripartite agreement, which reads as follows:
“WHEREAS the Third Party has agreed to insure the produce/goods stored in the cold storage to indemnify the produce in case of any casualty or accident by any means to cover the risk and also to cover the loan amount to avoid loss at the cost of the Second Party till the release order or repayment of the loan amount.”
9. The above judgment makes it clear that even the beneficiaries who can take benefit of the insurance availed by the insured would classify as a consumer. Thus, in view of the law laid down in the above judgment, this Court is of the view that the revision petitioner cannot contend before this https://www.mhc.tn.gov.in/judis Page 7 of 11 CRP.No.4445 of 2024 Court that the District Commission lacks jurisdiction.
10. Since the main issue as to whether non remittance of TDS for more than a year would amount to deficiency of service and the petitioner is entitled to any damages or not has to be seen only in appeal. Further, as per the dictum of the Hon'ble Supreme Court, the word definition of "consumer" under the Act is very wide and it includes the beneficiaries who can take benefit of the insurance availed by the insured. Since the very jurisdiction of Article 227 of the Constitution of India has been invoked on the ground of want of jurisdiction by the District Commission as if the respondent was not a consumer, this Court has decided that issue first. As far as the merits with regard to the deficiency of service, it has to be seen only by the proper appellate Court.
11. Such view of the matter, this Court without going into the merits of the case, as the appeal remedy as available under Section 41 of the Consumer Protection Act, 2019 grants liberty to the petitioner to file an appeal before the State Commission. On such appeal being filed, the State Commission shall exclude the period spent before this Court in this https://www.mhc.tn.gov.in/judis Page 8 of 11 CRP.No.4445 of 2024 revision.
12. With the above directions, this revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
02.12.2024
dhk
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
To,
The District Consumer Disputes Redressal Commission Villupuram https://www.mhc.tn.gov.in/judis Page 9 of 11 CRP.No.4445 of 2024 N.SATHISH KUMAR, J., dhk C.R.P.No.4445 of 2024 https://www.mhc.tn.gov.in/judis Page 10 of 11 CRP.No.4445 of 2024 02.12.2024 https://www.mhc.tn.gov.in/judis Page 11 of 11